FIRST DIVISION
G.R. No. 159949 February 27, 2006
VADM. MARIANO J. DUMANGCAS, JR., Petitioner,
vs.
HON. SIMEON V. MARCELO, OMBUDSMAN, DENNIS M. VILLAIGNACIO, SPECIAL ROSECUTOR, ROBERT E. KALLOS, DEPUTY SPECIAL PROSECUTOR, HUMPHREY T. MONTEROSO, DIRECTOR, PROSECUTION BUREAU and DANILO S. LOPEZ, SPECIAL PROSECUTION OFFICER III, OFFICE OF THE OMBUDSMAN, Respondents.
D E C I S I O N
CHICO-NAZARIO, J.:
This special civil action for certiorari under Rule 65 of the Rules of Court seeks to annul and set aside the order1 dated 25 November 2002 in OMB-4-97-0965, affirming and reinstating in toto the memorandum dated 12 December 2001, and the order2 dated 17 September 2003 denying petitioner’s motion for reconsideration.
The instant petition appears to have originated from the special audits conducted by the Commission on Audit (COA) on the Headquarters of the Philippine Navy (HPN).3 After perusal and evaluation of the pertinent documents in HPN, the COA auditors allegedly found evidence of violations of accounting and auditing rules. Thus, the COA auditors filed complaints before the Office of the Ombudsman based on the adverse findings they uncovered.
The findings of the COA auditors were embodied in the two audit reports, namely: (1) SAO Report No. 92-1284 which pertains to the transactions of the HPN for the period July 1991 to June 1992 and a portion of transactions for the period January to June 1991; and (2) SAO Report No. 94-98 which covered selected procurements or transactions made by the same agency during CYs 1990 and 1991 that were paid in 1992 and 1993.5
In SAO Report No. 94-98,6 the audit team made the following findings and observations, viz:
1. Funds obligated in 1984 and 1985 amounting to ₱153,497,882.40 intended for payment of previous year’s accounts payable were used to pay transactions incurred in 1990 and 1991 amounting to ₱85,854,775.50; and to cover check payments made in 1992 in the amount of ₱67,643,106.90 in violation of Sec. 85 of PD 1445. Moreover, these funds were not reverted to the unappropriated surplus of the General Fund of the National government in violation of Sec. 33 of PD 1177.
2. Check payments amounting to ₱67,643,106.95 charged against Journal Voucher No. 3159289 dated December 29, 1986 were not accounted for.
3.a Procurement of items costing more than ₱50,000 were not made through public bidding, in violation of COA Circular No. 85-55A. Instead, purchases worth ₱55,537,282.23 were made through emergency purchase although the items were not urgently needed or absolutely indispensable to prevent immediate danger to, or loss of life or property or to avoid detriment to the public service. As a result, purchase price of at least 131 items of medicines, medical supplies, office and construction supplies in the amount of ₱10,000,709.00 exceeded the prevailing market price by ₱6,146,444.29; the excess prices ranging from 4.90% to 1,071.25% per item. Comparison of Purchase Orders revealed a price difference of P356,690.20 on similar items procured by the command.
3.b Alterations were noted in the dates of Sales Invoices, Purchase Orders, Requisition and Issue Vouchers (RIVs) and other documents for paid purchases amounting to ₱19,949,884.50. Moreover, two suppliers who purportedly participated in the canvass as shown in the Canvass Proposals for puchases amounting to ₱17,692,829.07 denied having quoted the prices indicated in the canvass form nor participated in the canvass.
3.c Purchases of medicines and medical supplies in 1990 and 1991 worth ₱53,998,124.00 were not accounted for. Moreover, the alleged deliveries of medicines and medical supplies at Cavite Naval Hospital and at the Office of the Chief Surgeon amounting to ₱16,195,519.87 and ₱23,879,397.00, respectively, were in excess of the normal three-month supply requirement of these offices, in violation of COA Circular No. 85-55A dated September 8, 1985.
3.d Construction and asphalting materials amounting to ₱31,269,562.66 could not be accounted for. No documents could be presented by the concerned officials to show that these materials were actually received by the Phil. Navy units nor were they able to pinpoint the exact location of the projects where these materials were used. Moreover, no approved program of work were submitted for these projects contrary to the Implementing Rules and Regulations of PD 1594. These purchases were made through the Emergency mode of procurement and no bidding was conducted in violation of COA Cir. No. 85-55A dated September 8, 1985.
3.e Deliveries of construction materials and supplies used at the Subic Command totaling P10.4M could not be validated since delivery receipts furnished by the command did not indicate the Sales Invoice to which these pertains; and most DR’s were not acknowledged by the recipients. Furthermore, the former SUBCOM Supply Accountable Officer certified that the signatures on the documents in support of claims amounting to ₱3.2M were not genuine signatures. Lastly, ₱9.3M worth of these construction materials as well as those used at Naval District I in San Fernando, La Union amounting to ₱1,093,910 were purchased in Metro Manila instead of within the locality of Zambales and La Union, in violation of Section 11 of PD 1342.
3.f Office and construction materials worth ₱12M were substituted with office equipments and supplies and lesser quantity of construction materials without any amendment or changes in the Purchase Orders. Furthermore, items worth ₱4,498,710.00 were delivered beyond the prescribed date of delivery but liquidated damages amounting to ₱895,947 was not deducted from the payments made to supplier for items purchased, in violation of Provision III CI.7 of the Implementing Rules and Regulations of PD 1594.
3.g The validity of the purchase of various supplies and materials and vehicle/ship spare parts worth ₱6.88M was not established due to absence of pertinent supporting documents or submission of documents of doubtful authenticity, in violation of Section 4(6) of PD No. 1445.
3.h Spare parts amounting to P886,000 were purchased from a supplier who did not quote the lowest price; with a price difference (from that of the lowest bidder) of P85,750. Moreover an overpayment of P13,180 was noted in at least five claims due to erroneous computations. Further, it was noted that hospital supplies amounting to P999,741 were paid in 1992 but the Sales Invoice attached was dated August 26, 1994.
3.i Medicines, medical supplies, construction materials, and office supplies delivered were not subjected to quality test, in violation of Sec. 481 of the Government Accounting and Auditing Manual (GAAM). Moreover, no report of inspection of medicines delivered were submitted to COA within 24 hours as required under COA Cir. No. 89-299-A and SEC. 465 of GAAM.
3.j The Certification of Availability of Fund on the Purchase Orders dated April to August 1990 in the total amount of ₱10,560,830.00 were signed by an unauthorized official.
4.a Four suppliers who transacted business at HPN for supply of items worth ₱47,381,428.50 could not be found at their reported business addresses; casting doubt on the legitimacy of the transaction.
4.b Purchase Orders amounting to ₱54,398,743.56 were split to avoid review and approval of higher authorities in violation of COA Cir. No. 76-41 dated July 30, 1976 and Naval Logistics Directive No. 05-88 dated October 17, 1988. Likewise, Purchase Orders for items worth ₱1,050,740 were not acknowledged by the Supplier contrary to the provisions of COA Cir. No. 78-84 dated August 8, 1978.
5.a Twenty-two checks totaling ₱18,860,945.64 issued on July 30, 1993 were not supported by duly approved disbursement vouchers and were not included in the Report of Checks Issued by Deputized Disbursing Officer (RCIDDO); and all payments were deposited to one bank account.
5.b Checks amounting to ₱26,304,180.70 were dated one day to six months prior to the processing of the related disbursement vouchers, indicative that checks were prepared and issued without the duly processed and approved vouchers in violation of Sec. 4(b) of PD 1445.7
Resident Ombudsman for the Department of National Defense, Atty. Merba A. Waga, conducted a preliminary investigation on the allegations in SAO Report No. 94-98. In a memorandum dated 17 March 1997, Atty. Waga recommended to the then Ombudsman Aniano A. Desierto that a further preliminary investigation be conducted by the Office of the Deputy Ombudsman for the Military (ODOM) on the audit findings and observations of the COA, particularly for findings numbered 1, 2, 3.a, 3.c, 3.d, 3.e, 3.h, and 5.a.
The ODOM prosecutors conducted the preliminary investigation. The case was docketed as OMB-4-97-0965. In a resolution dated 18 March 1999, the ODOM prosecutors recommended the dismissal of the said case. The resolution was forwarded to the Office of the Special Prosecutor for review.
In a memorandum dated 11 August 1999, Special Prosecution Officers (SPO) Antonio T. Manzano and Florita S. Linco recommended that the 18 March 1999 resolution of the ODOM investigators be set aside and that the OSP be allowed to a conduct a preliminary investigation and reinvestigation of the case. The recommendation was approved by Ombudsman Desierto.
After conducting the preliminary investigation and reinvestigation of the case, SPO Linco, in a memorandum dated 12 December 2001, recommended that petitioner, among other respondents in OMB-4-97-0965, be indicted for 170 counts of violation of Section 3(e), Republic Act No. 3019, 21 counts of Malversation of Public Funds Thru Falsification of Public Documents and one count of violation of Section 4(a) of Rep. Act 6713. Ombudsman Desierto approved the recommendation and accordingly, informations were filed before the Sandiganbayan. The cases were docketed as Criminal Case Nos. 27234-27429 and were raffled to the third division thereof.
Petitioner filed a motion for reconsideration or reinvestigation before the Sandiganbayan which was granted by the said court.
In an order dated 25 November 2002, Special Prosecution Officer II Cicero D. Jurado, Jr. recommended the dismissal of Criminal Case Nos. 27234-27429. Ombudsman Simeon V. Marcelo disapproved the said recommendation and affirmed the 12 December 2001 memorandum recommending the filing of informations against, among other accused, petitioner, viz:
The recommended dismissal of the charges against respondents VAdm. Dumangcas, et al. is denied, while the implied recommended continuation of the prosecution of respondents Capt. Batestil, et al. is approved. Otherwise stated, the Resolution dated Dec. 12, 2001 (approved on Mar. 1, 2002) is affirmed in toto, there being no cogent reason to set aside or modify the same.8
Aggrieved, petitioner filed a motion for reconsideration. The said motion was denied in an order dated 17 September 2003.
Hence, the instant petition.
The sole issue in this petition is whether or not the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction in setting aside the recommendation of SPO Cicero D. Jurado, Jr. to dismiss the charges against petitioner in Criminal Case Nos. 27234-27429.
Petitioner contends that the Ombudsman committed grave abuse of discretion in finding probable cause against him. He asserts that there exists no probable cause to indict him as shown by the foregoing proceedings: first, in a case filed in OMB-4-97-0965 involving P53 million, the same was dismissed by the Office of the Ombudsman on the ground that the COA auditors made the admission that an error was committed in the conduct of their audit; second, in Criminal Case Nos. 25362-25385 (another separate cases filed before the Sandiganbayan), the charges against him were dropped as there was no probable cause to include him in the said cases. Petitioner argues that since the foregoing proceedings were based on SAO Report No. 92-128 in the same manner as the instant indictments, then to hold him liable of the latter is baseless considering his exculpation in the former.
He likewise bewails the manner in which the Ombudsman resolved the motion for reconsideration/reinvestigation by merely making a marginal note. Said marginal note which does not clearly and distinctly state the facts and the law on which it is based offends his right to due process.
On the other hand, the Ombudsman, through the Office of the Special Prosecutor maintains that the present indictments against petitioner, i.e., Criminal Case Nos. 27234-27429 have reference to COA SAO Report No. 92-128 contrary to the asseveration of the petitioner. The Ombudsman points out that SAO Report No. 92-128 is not the subject of any of the cases in the instant indictments.
Petitioner’s argument is not meritorious.
Petitioner anchors his contention on the belief that SAO Report No. 92-128 is the basis of OMB-4-97-0965, memorandum dated 12 December 2001 and ultimately Criminal Case Nos. 27234-27429. A closer examination of the records of this case reveals the contrary view.
It must be noted that the subject matter of memorandum dated 17 March 1997 is the SAO Report No. 94-98, viz:
x x x The first audit report, SAO Report No. 92-128 was the subject of our earlier Memorandum for the Honorable Ombudsman dated March 21, 1997. Instant Memorandum pertained to the audit report (SAO Report No. 94-98) of the second audit team.9 (Emphasis supplied.)
In fact, the said memorandum incorporated the summary of the COA auditors’ findings and observations contained in SAO Report No. 94-98. The memorandum recommended to the Ombudsman a further preliminary investigation on some of the findings in SAO Report No. 94-98 by the ODOM prosecutors which the Ombudsman approved.
As earlier mentioned, the ODOM prosecutors conducted a preliminary investigation. The case was docketed as OMB-4-97-0965. With the termination of the preliminary investigation, the ODOM prosecutors in a resolution dated 18 March 1999 recommended that the case be dismissed for lack of probable cause. The same resolution made reference to SAO Report No. 94-98; hence:
One of the findings of the Commission on Audit (COA) in its special audit conducted at the Philippine Navy covering the transactions of the said agency during the years 1990 and 1991 pertain to alleged unaccounted medicines and medical supplies. Further, the Report (SAO Report No. 94-98) indicated over-deliveries of items in violation of COA Circular 85-55-A, dated September 8, 1985.10
Subsequently, the case was forwarded to the Office of the Special Prosecutor for review. SPO Manzano and Linco evaluated the resolution of the ODOM prosecutors.
Finding that there exists probable cause to hold respondents for trial, SPO Manzano and Linco, in a memorandum dated 11 August 1999, recommended that the resolution of the ODOM prosecutors be set aside and that they be authorized to conduct preliminary investigation and reinvestigation of the case. The Ombudsman approved the said recommendations.
SPO Linco proceeded with the preliminary investigation and reinvestigation. As a result, she came up with the memorandum dated 12 December 2001 recommending that petitioner, among other respondents, be indicted for 170 counts of violation of Section 3(e), Rep. Act No. 3019, 21 counts of Malversation of Public Funds Thru Falsification of Public Documents, and one count of violation of Section 4(a) of Rep. Act No. 6713. The Ombudsman approved the recommendation and accordingly, the informations, docketed as Criminal Case Nos. 27234-27429, were filed before the Sandiganbayan and raffled to its Third Division.
Again, the memorandum dated 12 December 2001 in an unequivocal language referred to the SAO Report No. 94-98 as its subject matter and not SAO Report No. 92-128 as claimed by petitioner, thus:
But, be that as it may, the undersigned recommends in so far as transactions involving medicine and medical supplies are concerned to hold and so hold the following officer/employees liable. x x x
x x x x
As previously mentioned, the irregularities did not only cover procurement and purchases of medicines and medical supplies.
For instance, SAO Report No. 94-98 disclosed that payment of some purchases of the Philippine Navy were taken out of funds obligated under Journal Voucher No. 3169289 dated December 29, 1985, intended to pay for the preceding years’ accounts payable but for some reasons were unexpended. These funds in the sum of P153,497,882.40 should have been reverted to the unappropriated surplus of the general fund of the national government pursuant to Section 85 of P.D. 1446, but instead of reverting, the Philippine Navy without authority, used P86,864,776.50 out of the said sum in 1992 to pay for purchases incurred in 1990 and 1991. Their failure to so revert constitutes undue injury to the government x x x.11
It is noteworthy that the foregoing transactions involving the purchases of medicines and medical supplies and the funds obligated under Journal Voucher No. 31 in the sum of ₱153,497,882.40 are the same transactions which were embodied in findings nos. 3.c and 1, respectively, of SAO Report No. 94-98.12
As shown by the chain of proceedings, indeed, SAO Report No. 94-98 and not SAO Report 92-128 is the basis of the instant cases filed against petitioner.
There is also no warrant for the contention that the COA auditors admitted that they made a mistake in the conduct of their audit. The replies of the COA dated 28 December 1998 merely stated that the explanation of Capt. Briones was considered as he has no duty to control the disbursement of funds. It further declared that the same official is not one of those determined to be responsible for the alleged anomalous transaction, to wit:
1. Complainant considers the justification/explanation of Capt. Briones inasmuch as he has no duty to control the disbursement of funds. Further, he is not one of those determined to be responsible under Finding No. 8 of SAO Report No. 92-128 which is the subject of the above-captioned case.
WHEREFORE, in view of the above, complainant respectfully prays that the Respondent be excluded from among the list of persons responsible in the above-captioned case.13
Based on the foregoing, there is no such admission by the COA that the auditors committed a mistake in the conduct of the audit. Besides, the subject matter thereof is the SAO Report No. 92-128 which is totally different from the instant cases.
Furthermore, the claim of the petitioner that the case in OMB-4-97-0965 involving the amount of ₱53,998,124.07 was dismissed by Ombudsman Desierto is unfounded. As already mentioned, the resolution dated 18 March 1999 of the ODOM prosecutors recommending the dismissal of OMB-4-97-0965 was disapproved by Ombudsman Desierto upon the advice of SPO Manzano and Linco.
As to petitioner’s remonstration on the manner the Ombudsman resolved the motion for reconsideration/reinvestigation by merely writing a marginal note, the same deserves scant consideration. The marginal note of the Ombudsman setting aside the recommendation of SPO Jurado and ordering the filing of the necessary informations against petitioner is not a case of a total absence of factual and legal bases nor a failure on the part of the Ombudsman to appreciate the evidence presented. As held in Gallardo v. People14 :
x x x. It may appear that the Ombudsman’s one-line note lacks any factual or evidentiary grounds as it did not set forth the same. The state of affairs, however, is that the Ombudsman’s note stems from his review of the findings of fact reached by the investigating prosecutor. The Ombudsman, contrary to the investigating prosecutor’s conclusion, was of the conviction that petitioners are probably guilty of the offense charged, and for this, he is not required to conduct an investigation anew. He is merely determining the propriety and correctness of the recommendation by the investigating prosecutor, i.e., whether probable cause actually exists or not, on the basis of the findings of fact of the latter. He may agree, fully or partly, or disagree completely with the investigating prosecutor. Whatever course of action that the Ombudsman may take, whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an exercise of his discretionary powers based upon constitutional mandate. x x x
The fact that the Ombudsman merely wrote his recommendation for the filing of the information against petitioners in a one-line note is not a sufficient basis for this Court to attribute arbitrariness or caprice on the part of respondent.
This Court has invariably refrained from interfering with the Ombudsman’s discretion in the conduct of preliminary investigation absent a clear case of grave abuse of discretion.15 The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they would be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an Information in court or dismiss a complaint by a private complainant.16
Grave abuse of discretion is the capricious and whimsical exercise of judgment on the part of public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an invasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.17
No grave abuse of discretion, as defined, can be attributed to the Ombudsman. On the contrary, his orders finding probable cause against petitioner are based on the evidence extant in the records.
WHEREFORE, premises considered, the petition is DISMISSED for lack of merit.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice |
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice |
ROMEO J. CALLEJO, SR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1 Rollo, pp. 17-19.
2 Id., pp. 13-14.
3 Id., p. 72, 104.
4 Records are silent about the findings in SAO Report No. 92-128.
5 Rollo, p. 104.
6 As summarized in Atty. Merba A. Waga’s memorandum dated 17 March 1997.
7 Rollo, pp. 72-75.
8 Id., p. 19.
9 Id., p. 72.
10 Id., p. 78.
11 Id., pp. 95-96.
12 1. Funds obligated in 1984 and 1985 amounting to ₱153,497,882.40 intended for payment of previous year’s accounts payable were used to pay transactions incurred in 1990 and 1991 amounting to ₱85,854,775.50; and to cover check payments made in 1992 in the amount of ₱67,643,106.90 in violation of Sec. 85 of PD 1445. Moreover, these funds were not reverted to the unappropriated surplus of the General Fund of the National government in violation of Sec. 33 of PD 1177.
3.c. Purchases of medicines and medical supplies in 1990 and 1991 worth ₱53,998,124.00 were not accounted for. Moreover, the alleged deliveries of medicines and medical supplies at Cavite Naval Hospital and at the Office of the Chief Surgeon amounting to ₱16,195.87 and ₱23,879,397.00, respectively, were in excess of the normal three-month supply requirement of these offices, in violation of COA Circular No. 85-55A dated September 8, 1985.
13 Rollo, p. 107.
14 G.R. No. 142030, 21 April 2005, 456 SCRA 494, 503-504.
15 Osorio v. Desierto, G.R. No. 156652, 13 October 2005.
16 Id.
17 Perez v. Office of the Ombudsman, G.R. No. 131445, 27 May 2004, 429 SCRA 357, 361.
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